Freier v. Westinghouse Elec. Corp., Docket No. 00-7724(L).
| Decision Date | 15 August 2002 |
| Docket Number | Docket No. 00-7728(XAP).,Docket No. 00-7724(L). |
| Citation | 303 F.3d 176 |
| Parties | Raymond FREIER, Individually, as Administrator of the Estate of Rose Freier, deceased, and as surviving spouse of Rose Freier, Arthur L. Phillips, Administrator of the Estate of Leo Phillips, deceased, and Dorothy Phillips, as the surviving Spouse of Leo Phillips, Tab Fuqua, Charlotte Mucha, individually, as Executrix of the Estate of Alfred G. Mucha, deceased, and as surviving spouse of Alfred Mucha, John Farino, Administrator of the Estates of Mary Jane Farino and Robert Farino, deceased, Grace Astor, individually, and as surviving spouse of Evo T. Astor, Harry Basinski, Sr., Ellen Basinski, his spouse, Kathy Kaminski, Administratrix of the Estate of Joseph Inzinna, deceased, Mary Ylmar, Marie Manolis, Executrix of the Estate of Louis Manolis, deceased, and individually as the surviving spouse of Louis Manolis, legal representative of the Estate of Leo Ott, deceased, and Administratrix of Mary M. Sturm, deceased, William Neilsen, Betty Barabasz, Executrix of the Estate of George Pagels, deceased, Gloria Pagels, Individually as the surviving spouse of George Pagels, Joseph Grandillo, executor of the Estate of Stephen Grandillo, deceased, Shirley Kuczka, Executrix of the Estate of Henry Kuczka, deceased, and individually as the surviving spouse of Henry Kuczka, Mary Ann Boxhorn, Executrix of the Estates of Leo and Annabel Foisset, deceased, Eileen Folts, Administratrix of the Estate of Helen Hancock, deceased, Franklin Mueller, Flora Mueller, his spouse, Robert S. Fiels, Delores Fiels, his spouse, Irene M. Marino, legal representative of the Estate of Anthony J. Marino, deceased, and individually as the surviving spouse of Anthony J. Marino, deceased, Nancy Forman, Carl P. Forman, Sr., her spouse, Joseph J. Wiedenbeck, Jr., legal representative of the Estates of Isabelle A. Wiedenbeck and Joseph J. Wiedenbeck, Sr., deceased, Linda Kistka, legal representative of the Estate of Nelson M. Hirsch, deceased, Nelly Anthony, legal representative of the Estate of Diane Anthony, deceased, Eleanor Jasinski, legal representative of the Estate of Leocadia Jasinski, deceased, George Scherrer, Jr., legal representative of the Estate of George Scherrer, Sr., deceased, Marie Scherrer, individually as the surviving spouse of George Scherrer, Sr., deceased, Veronica A. Zawatski, legal representative of the Estate of Robert Zawatski, deceased, and individually as surviving spouse, Michael Lamancuso, Marlene Lamancuso, his spouse, Thomas Szyplman, legal representative of the Estate of Victoria Szyplman, deceased, Geraldine Davies, Morley P. Davies, her spouse, Kevin Batt, individually, as Administrator of the Estate of Charles W. Batt, deceased, and Executor of the Estate of Rose E. Batt, deceased, Patricia Batt, his spouse, Donna McKowan, Donald McKowan, her spouse, Norman Wagner, Patricia Wagner, his spouse, Eileen Ewert, Administratrix of the Estate of Evo T. Astor, deceased, Thomas F. Hewner, public Administrator of the Estate of Lorraine E. Brzezicki, deceased, Lawrence Heaney, legal representative of the Estate of Gretchen Heaney, deceased, Marie Martzolf, Executrix of the Estate of Robert Martzolf, deceased, and individually as surviving spouse, and Jacqueline Mongiovi, Executrix of the Estate of Vincent Mongiovi, deceased, and individually as his surviving spouse, Plaintiffs-Appellants-Cross-Appellees, v. WESTINGHOUSE ELECTRIC CORPORATION, Allied Waste Systems, Inc., formerly known as Laidlaw Waste Systems, Inc., Dresser Industries, Inc., American Standard, Inc., Carborundum Company, and E.I. Dupont de Nemours & Co., Inc., Defendants-Appellees-Cross-Appellants, General Motors Corporation, Curtiss-Wright Corporation, Warner-Lambert Company, and Ford Motor Company, Defendants-Third-Party-Plaintiffs-Appellees-Cross-Appellants, Litton Systems, Inc., Defendant-Third-Party-Defendant-Appellee-Cross-Appellant, Browning-Ferris Industries, Inc., Defendant-Cross-Appellant, Trico Products Corporation, Occidental Chemical Corporation, Waste Management of New York, Inc., Niagara Mohawk Power Corporation, and New York State Electric & Gas Corporation, Third-Party-Defendants-Cross-Appellants, Howden Fan Company, formerly known as Buffalo Forge Company, Defendant-Appellee, W.S. Tyler Inc., Defendant, Lancaster Stone Products Corp., Paul M. Pfohl, Pfohl Brothers, Pfohl Enterprises, Bryan Pfohl, and Town of Cheektowaga, Third-Party-Defendants. United States of America, Intervenor. |
| Court | U.S. Court of Appeals — Second Circuit |
Steve Jensen, Dallas, TX (Laura J. Van Pelt, Baron & Budd, Dallas, TX, on the brief), for Plaintiffs-Appellants-Cross-Appellees.
Laurie Styka Bloom, Buffalo, N.Y. (Mark A. Molloy, Nixon, Peabody, Buffalo, NY, on the brief), for all Cross-Appellants.
R. Justin Smith, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, DC (Lois Schiffer, Assistant Attorney General, Stephen J. Sweeney, Attorney-Advisor, Environmental Protection Agency, John A. Bryson, Environment & Natural Resources Division, United States Department of Justice, on the brief), for Intervenor.
Herzfeld & Rubin, New York, N.Y. (Michael Hoenig, Noreen M. Giusti, New York, NY, Hugh F. Young, Jr., The Product Liability Advisory Council, Inc., Reston, VA, of counsel), filed a brief on behalf of Amicus Curiae The Product Liability Advisory Council, Inc., in support of Appellees.
Before: KEARSE, LEVAL, and KATZMANN, Circuit Judges.
Judge LEVAL concurs, in a separate opinion.
Plaintiffs Raymond Freier et al. appeal from a judgment entered in the United States District Court for the Western District of New York pursuant to Fed. R.Civ.P. 54(b), Richard J. Arcara, Judge, dismissing certain of their state-law tort claims alleging that personal injuries to themselves and their decedents were caused by toxic substances transported to and maintained in a Cheektowaga, New York landfill. The district court granted partial summary judgment dismissing those claims as untimely, ruling that under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675 (1994 & Supp. V 1999), § 203 of the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9658, plaintiffs' claims accrued when they knew or with reasonable diligence should have known that the injuries resulted from exposure to hazardous substances deposited in the landfill, see In re Pfohl Brothers Landfill Litigation, 26 F.Supp.2d 512 (1998) ("Pfohl I"), but also ruling that plaintiffs should have suspected the cause of their injuries no later than the end of 1991 and that therefore, even under 42 U.S.C. § 9658, their claims, asserted beginning in 1995, were barred by the relevant statute of limitations, see In re Pfohl Brothers Landfill Litigation, 68 F.Supp.2d 236 (1999) ("Pfohl II"). On appeal, plaintiffs contend principally that the court erred in ruling as a matter of law that they should have known no later than the end of 1991 that their injuries were caused by the landfill. They also contend that the court erroneously applied a one-year, rather than a three-year, limitations period.
Various defendants and third-party defendants have cross-appealed, urging that the judgment be affirmed in toto on the ground that 42 U.S.C. § 9658, to the extent that it alters state law as to the starting date of a state limitations period on state-law claims, is unconstitutional under the Commerce Clause and the Tenth Amendment of the Constitution. They also urge partial affirmance on the ground that § 9658 is inapplicable to claims involving the death of a plaintiff's decedent. The United States has intervened in this Court, arguing for the constitutionality of § 9658.
For the reasons that follow, we conclude that the district court properly rejected defendants' statutory-interpretation and constitutional challenges to § 9658 and that it properly found that plaintiffs' claims were subject to the pertinent one-year limitations period. However, we conclude that there are triable issues of fact as to the time when plaintiffs reasonably should have known that the landfill materials were the cause of the injuries. Accordingly, we vacate and remand for further proceedings.
The present actions concern injuries alleged to have resulted from the maintenance of a landfill owned and operated principally by third-party-defendants Pfohl Brothers and Pfohl Enterprises (the "Pfohl Landfill" or "Landfill") in Cheektowaga, which is adjacent to Buffalo, New York. The Pfohl Landfill is a 120-acre area used for waste disposal. It borders Aero Lake, a fishing and swimming site, and is within a few hundred feet of Ellicott Creek, which is fed by three tributaries that flow through the Landfill. Ellicott Creek empties into the Niagara River, an international waterway between the United States and Canada. Since at least 1983, the Landfill has been listed in the New York State Registry of Active Hazardous Waste Disposal Sites.
The present actions, consolidated in the district court for all pretrial purposes sub nom. In re Pfohl Brothers Landfill Litigation, were commenced by the filing of several essentially identical complaints between January 1995 and January 1997 by more than 60 plaintiffs on behalf of themselves or their respective decedents, alleging that the injured parties suffered from various cancers caused by exposure to toxic wastes deposited in the Pfohl Landfill. The complaints alleged that most of the plaintiffs had lived or worked in the immediate vicinity of the Landfill or had engaged in recreational activities near the Landfill. Many of the plaintiffs had used the Landfill area as an access route to Aero Lake; their children had often played in the...
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